LAY v Minister for Immigration

[2014] FCCA 923

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 923

Catchwords:
MIGRATION – Migration Review Tribunal – application for subclass 461 New Zealand Citizen visa – application made more than 12 months after the  cessation of last substantive visa held by the first applicant – second applicant born after first applicant’s visa application was made but before it was decided – second applicant taken to have applied for same visa as mother on the day the second applicant was born – second applicant’s visa application not yet determined.

Legislation:
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 s.338
Migration Regulations 1994 reg.2.08, cls.3001, 3002, 3003, 3004 and 3005 of Sch.3, cl.461.213 of Sch.2

First Applicant: CHREP LAY

Second Applicant: JELINA CHOEUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 824 of 2013

Judgment of: Judge Riley

Hearing date: 5 March 2014

Date of last submission: 2 April 2014

Delivered at: Melbourne

Delivered on: 16 May 2014

REPRESENTATION

Counsel for the first applicant: The first applicant appeared in person

Solicitors for the first applicant: T.A. Fernandez

Counsel for the second applicant: No appearance

Solicitors for the second applicant: T.A. Fernandez

Counsel for the first respondent: Catherine Symons

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application filed on 11 June 2013 be dismissed.

2. The costs of the proceeding be reserved until the first respondent has complied with his continuing obligation to determine the application that the second applicant is taken to have made on 4 June 2012.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 824 of 2013

CHREP LAY

First Applicant

JELINA CHOEUN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal.

2. The first applicant applied for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa on 26 April 2012.  At that time, the first applicant was pregnant with the second applicant.  The second applicant was born on 4 June 2012.

3. On 4 July 2012, a delegate of the Minister refused the first applicant’s application. The delegate determined that the first applicant was unable to satisfy subclause 461.213(b)(ii) of Schedule 2 of the Migration Regulations 1994.   That was because the first applicant had made her visa application more than 12 months after the “relevant day”, being the day when her most recent substantive visa had ceased to have effect.  The first applicant’s most recent substantive visa was a tourist visa that ceased to have effect on 6 January 2010.   The delegate did not address the situation of the second applicant.

4. On 20 July 2012, the first and second applicants applied to the Tribunal for review of the delegate’s decision.  The Tribunal conducted a hearing on 5 March 2013.  On 6 May 2013, the Tribunal affirmed the delegate’s decision in relation to the first applicant and determined that it did not have jurisdiction in relation to the second applicant.  The Tribunal considered that it had no jurisdiction because the delegate had not made a decision in relation to the second applicant.

5. The application to this court was filed by a solicitor, Mr Fernandez.  Mr Fernandez also filed written submissions on 4 March 2014 and on

   
   

   2 April 2014 on behalf of the applicants.  However, the applicants were not represented at the hearing before this court.

Ground 1

1. The first ground of review in the application filed on 11 June 2013 is:

   The applicants have been incorrectly served, therefore service is not valid for the applicants have not been served by their authorised recipient

2. The application contains no particulars of this ground.  The applicants did not address this ground in their written submissions other than to say that they did not abandon it.  The first applicant made no oral submissions in relation to this ground at the hearing before this court.

3. In the absence of particulars or submissions on this ground, it is not apparent what the complaint is about.  It appears from the court book that all relevant documents were correctly sent to the applicants’ authorised representatives.  The applicants attended the Tribunal hearing on the appointed date and filed their application to this court within the required time.  It does not appear that any issue concerning service has impacted in any way on the applicants’ conduct of the proceeding.  This ground is not made out.

Ground 2

1. The second ground of review in the application filed on 11 June 2013 is:

   The applicants have been denied natural justice in that, the matter has not been adjourned as requested.

2. The application contains no particulars of this ground.  The applicants did not address this ground in their written submissions other than to say that they did not abandon it.  The first applicant made no oral submissions in relation to this ground at the hearing before this court.

3. The Tribunal addressed the various adjournment requests made by the applicants in the following terms:

   16.On 13 February 2013 the applicant, through her then representative, was invited to the hearing scheduled for 5 March 2013 at 1.30pm. On 27 February 2013 her then representative telephoned the Tribunal and said he had an important event at that time and could not attend the hearing. The Tribunal file note records that he was advised to put his request in writing for the member to consider. No written request was received by the Tribunal nor was a “Response to Hearing Invitation” received.

   17.A day before the hearing, the 4 March 2013, the Tribunal received notification that the applicant had changed her representative. On the same day that representative requested by fax that the hearing be rescheduled until sometime after 9 April 2013 on the basis of his ill-health and reduced mobility and that he was proceeding overseas on the 17 March for medical treatment. The application was refused because of the lateness of the application, the lack of supporting evidence accompanying it and the fact that there was no claim or any evidence that the applicant would suffer any prejudice by the physical absence of the representative or that she would not have a reasonable opportunity to fully present her case. The Tribunal advised the representative that he could attend by telephone and that he would be given an opportunity to provide further written submissions following the hearing. The file note recording the conversation records that the representative gave his telephone number and said he may be present by telephone.

   18.At the hearing, the review applicant was represented by another registered migration agent. He also requested an adjournment of the hearing on the basis that the former representative, who was familiar with the file, was ill. He said that a medical certificate would be faxed to the Tribunal as evidence of that representative’s inability to attend. (A medical certificate confirming that the former representative was unable to perform work because of his reduced mobility was later faxed to the Tribunal and is recorded as received at 3.32pm. The hearing had commenced as scheduled at around 1.30pm). This representative said he had only limited time to examine the file and was not as familiar with the case as the other representative. The Tribunal considered this further request and, for the same reasons as in the previous application the previous day, the Tribunal refused this adjournment application, indicating that a digital record of the hearing was available to the parties and the Tribunal would give the representative time to forward any further written evidence and/or submissions. The Tribunal also notes that the applicant’s original representative, who had previously telephoned seeking an adjournment (see paragraph 16 above), also attended the hearing as an observer and communicated freely with the applicant during the hearing.

   19.At the conclusion of the hearing a date was agreed, after the return of the applicant’s other representative from overseas, for the production of any further materials or submissions. On 12 April 2013 the applicant’s representative contacted the Tribunal and sought further time, until 17 April 2013, to provide written submissions. The Tribunal allowed this extra time and on 17 April a further submission was received. In all the circumstances the Tribunal considers that the applicant has had a full opportunity to present her case.

4. By facsimile dated 17 April 2013, the applicants made the following post hearing written submission:

   This post-hearing submission is made on instructions.

   The review applicant and her partner have given evidence.

   Neither the Department nor the Tribunal have considered schedule 3 criteria in full, particularly, items 3003, 3004 and 3005.

   It is not clear regarding the status of Ms. Jelina Choeun. All things considered, it may be advisable to remit this matter among other things, for a consideration of the relevant schedule in its entirety.

   I am obliged to the member for granting me this opportunity to make this post-hearing submission and to extend the time as well.

5. In these circumstances, I am not persuaded that the applicants were denied natural justice.  They in fact had two representatives at the hearing.  There was no suggestion that there were any other submissions they could have made or any further evidence they could have given.  There was no suggestion that the applicants were not alerted to the issues on which the case turned.  This ground is not made out.

Ground 3

1. The third ground of review in the application filed on 11 June 2013 is:

   The Tribunal has asked of the first named applicant, an incorrect question (please see para 22 of the ‘Tribunal’s decision’)

2. The application contains no particulars of this ground.  The applicants did not address this ground in their written submissions other than to say that they did not abandon it.  The first applicant made no oral submissions in relation to this ground at the hearing before this court.

3. Paragraph 22 of the Tribunal’s reasons for decision is as follows:

   22.The Tribunal outlined the requirements of cl.416.213 (sic) and asked the applicant her why she thought the delegate’s decision, which she had provided to the Tribunal with her review application, was wrong. She responded that she had “no idea”.

4. It seems to me that the Tribunal’s question, as recorded in paragraph 22 of its reasons for decision, was not incorrect, in any significant way.  Arguably, the correct question was not whether the delegate was right or wrong.  The correct question was what was the correct and preferable decision on the material before the Tribunal.  But the essence of the Tribunal’s question to the first applicant actually concerned the requirements of cl.461.213.  Couching the question in terms of what the delegate had decided did not make the question incorrect.

5. In any event, it does not matter if the Tribunal asked the first applicant the “incorrect” question during the course of the hearing.  The question is whether the Tribunal ultimately asked itself and answered the correct question.  It clearly did.  This ground is not made out.

Ground 4

1. The fourth ground of review in the application filed on 11 June 2013 is:

   The Tribunal has failed to indicate “other material available to it from a range of sources” (please see para 12 of the Tribunal’s decision)

2. The application contains no particulars of this ground.  The applicants did not address this ground in their written submissions other than to say that they did not abandon it.  The first applicant made no oral submissions in relation to this ground at the hearing before this court.

3. Paragraph 12 of the Tribunal’s reasons for decision is as follows:

   12.The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

4. The reference to “other material from a range of sources” appears to be a standard phrase.  It is by no means apparent that the Tribunal did, in fact, have regard to “other material from a range of sources”.  There is no suggestion that the Tribunal had regard to material to which the applicant should have been alerted for reasons of natural justice.  In these circumstances, this ground is not made out.

Ground 5

1. The fifth ground of review in the application filed on 11 June 2013 is:

   The Tribunal has made an incorrect decision in relation to the 2^nd named applicant (please see para 34 of the Tribunal’s decision) and also, para 28).

2. Paragraphs 28 and 34 of the Tribunal’s reasons for decision are as follows:

   28.The delegate’s decision was made on 4 July 2012, after the child was born, but there is no reference in the decision to the child. The Tribunal has closely examined the Department’s file and, while there is evidence that it was notified of the applicant’s pregnancy, there is nothing on the file to indicate that it was advised before it made its decision that the child had been born. Following the delegate’s decision, there is a note on the Department’s file indicating that the applicant had not advised it of the birth and that further details were needed in order to determine the child’s migration status.

   34.It follows that there is no jurisdiction to conduct a review in relation to the child as no reviewable decision on the child’s application has been made.

3. The rest of the Tribunal’s discussion of this issue is as follows:

   9.The review applicant has also included her child, born after her visa application was made but before it was determined by the delegate, in this review application. In this context Regulation 2.08 is relevant and provides:

   Reg 2.08 Application by newborn child

   2.08 (1) If:

   (a)     a non-citizen applies for a visa; and

   (b) after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non-citizen;

   then:

   (c)the child is taken to have applied for a visa of the same class at the time he or she was born; and

   (d)the child's application is taken to be combined with the non-citizen's application.

   (2)Despite any provision in Schedule 2, a child referred to in subregulation (1):

   (a)must satisfy the criteria to be satisfied at the time of decision; and

   (b)at the time of decision must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.

   Note: Regulations 2.07AL and 2.08AA apply in relation to an application by a contributory parent newborn child.

   …

   29.As noted above, the applicant confirmed at hearing that she had not advised the Department of the child’s birth.

   30.Under r.2.08 of the Regulations, children born to a non-citizen after a primary visa application is made, but before it is decided, are taken to have applied for a visa of the same class as their parent at the time they were born. The child’s application is taken to be combined with the non-citizen’s application on the basis of being a member of the family unit of the primary applicant.

   31.In usual circumstances therefore a child born before the primary decision is made will normally be the subject of the primary decision and may be included in an application for review. However, if the Department was not notified of the birth before the primary decision was made, as is the situation in this application, the child may not, as a matter of fact, be the subject of a decision.

   32.In such a situation, whilst that child will be taken to be a secondary applicant for the visa (having been taken to have made a combined visa application with the first applicant at the time he or she was born), and the Minister is under a continuing obligation to make a decision on that second applicant’s claims, the second applicant is not able to make a valid review application to the Tribunal because his or her application has not been dealt with by the Minister’s delegate. (SZRMC v MIAC [2012] FMCA 845 (Driver FM, 31 September 2012) at [30]-[31]).

   33.In this application, as noted above, the Department was not notified and the delegate was unaware of the actual birth of the child and therefore the Tribunal finds that the delegate has not made a decision on her application.

4. In the applicants’ written submissions filed on 4 March 2014, the applicants said:

   … Pertinently on page 1 of the Court Book, the then Migration Agent had this to say“ the couple were married on 17^th September 2011 and now the applicant is six months pregnant”. The issue here is whether the Tribunal was correct in saying that no decision has been made on the second named applicant’s ( child) application. This what the Tribunal said at page 170 of the Court Book paragraphs 33 & 34, “in this application as noted above, the department was not notified and the delegate was unaware of the actual birth of the child and therefore the tribunal finds that the delegate has not made a decision on her application, it follows that there is no jurisdiction to conduct a review in relation to the child as no reviewable decision on the child’s application has been made”. In this connection the Court’s attention is drawn to on the decision of SZBYR v MIAC wherein it was held that all powers and discretion that are conferred by this Act on the person will be exercisable by the MRT. (Vide to section 349 (1) of the Migration Act 1958.)

5. In the applicants’ written submissions filed on 2 April 2014, the applicants said:

   I send by fax, along with this letter, a copy of the second applicant’s birth certificate and the second applicant’s father’s passport which discloses him as [a] New Zealand passport holder.

   It is not necessary for the Minister to fulfil his continuing obligation in relation to the second named applicant as the Tribunal has got same powers as the Minister (please see Sok v. Minister).

6. The second applicant’s birth certificate shows that her father is Sophoeung Choeun.  His passport indicates that he is a citizen of New Zealand.

7. The first respondent said the following in his written submissions filed on 24 February 2014 in relation to this issue:

   36.The Tribunal determined that it did not have jurisdiction to conduct a review in relation to the second applicant as no reviewable decision on her application had been made by the delegate: CB 170 [33]-[34].

   37.In making this finding, the Tribunal relied upon a decision of the Federal Magistrates’ Court (as it then was) in SZRMC v MIAC [2012] FMCA 845 (SZRMC) and in particular, the following passages, which provided (with some text omitted):

   “[30]…The Tribunal’s conclusion that it had no jurisdiction in respect of the purported review application by the second applicant was in my view correct but probably for the wrong reasons. Counsel for the Minister drew my attention to regulation 4.31A of the Migration Regulations:

   (1)    If:

   (a)    2 or more applicants have combined their primary applications for a Protection (Class XA) visa in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 2.08B; and

   (b)    the Minister’s decisions in respect of 2 or more of those applicants are that Protection (Class XA) visas not be granted; and

   (c)    the Minister’s decisions are RRT-reviewable decisions;

   the applicants referred to in paragraph (b) may combine their applications for review by the Tribunal of the Minister’s decisions.

   (2)Subregulation (1) applies to an application for review made on or after 1 August 1996.

   [31]  In my view, the effect of that regulation is that the second applicant was not able to make a valid review application to the Tribunal because her protection visa application had not been dealt with by the Minister’s delegate. There being no valid review application before the Tribunal by the second applicant, the Tribunal could make no decision in respect of her.”

   38.Regulation 4.12(2) of the Regulations is the equivalent Migration Review Tribunal provision to reg. 4.31A(1) and is, save for references to ‘MRT-reviewable decisions’ instead of ‘RRT-reviewable decisions’, in substantially identical terms to its counterpart. It would follow that the same legal analysis applied in SZRMC could apply with equal force to matters where reg. 4.12(2) is engaged.

   39.In the present case, like in SZRMC, the second applicant was born prior to the date of the Minister’s decision but after the date of the application for the visa filed by the first applicant. Like in SZRMC, the decision of the delegate did not purport in any way to consider the position of the second applicant or to make a decision in respect of her. Indeed, the evidence suggests that the delegate was not aware of the second applicant’s birth. In these circumstances, there was no error in the Tribunal’s finding, made on a straightforward application of SZRMC, that it lacked the jurisdiction to conduct a review in relation to the second applicant as there was no reviewable decision (as comprehended by r. 4.12(2)(b) of the Regulations) before it.

   40.The effect of such a finding would not be to deprive the second applicant of an opportunity to have her application for a visa determined by the first respondent. Whilst her application was ‘combined’ with that of the first applicant, which had the practical consequence of relieving her of the need to pay a visa application fee or to complete a separate visa application form, the first respondent remains under a continuing obligation to make a separate decision in respect of the second applicant which decision would in turn be amenable to review by the Tribunal.

1. In further written submissions filed on 14 March 2014, the first respondent said:

   8.Whilst the operation of reg. 2.08 of the Regulations was the subject of argument before the Court on 5 March 2014 it nonetheless remains the case that it is of central significance to the question of the potential eligibility of the second applicant for a visa and the extant obligations of the first respondent in this regard.

   9.     The effect of reg. 2.08 is that the second applicant is taken to have applied at birth for a visa of the same class as her mother (the first applicant) and this is so, despite the fact that the Department was not notified of the birth of the second applicant until after the primary decision was made. This position is reflected in Part 53 of the Department’s PAM.

   10.The Department’s policy guidelines (at Part 49.2 of PAM) clarify that each person who combines their application with another person:

   (a)     is an applicant in their own right;

   (b)     has made their own application in law; and

   (c)     must be considered against primary criteria and secondary criteria.

   11.In a case such as the present, where the primary decision maker considered only the application of the first applicant, the first respondent is under a continuing obligation to determine the application of the second applicant as against both the primary criteria and the secondary criteria. Where a decision is made in respect of the first applicant, reg. 2.08 does not operate so as to deem that decision as applying also to the second applicant.

   12.This being the case, the fate of the second applicant’s application for the substantive subclass 461 visa is not inevitably or automatically tied to that of the first applicant. The first applicant’s subclass 461 visa application was refused on the basis that the first applicant did not apply for the visa within the 12 months after her last substantive visa ceased and was therefore unable to satisfy time of application criteria, namely cl. 461.213 of Schedule 2 to the Regulations and cl. 3001 of Schedule 3: see original written submissions at [30]-[33].

   13.However, due to the operation of reg. 2.08(c) of the Regulations, this criterion (cl. 461.213) would not be applicable to the second applicant’s application as she would be required to satisfy, and be assessed against, time of decision criteria only.

   14.On the information presently available to the Department, the first respondent is not able to confirm whether the second applicant can satisfy the criteria for the grant of a subclass 461 visa. This information would be sought in connection with the processing of the second applicant’s visa application.

   Issue no. 2 – When will the Department process the second applicant’s visa application

   15.The Department proposes to process the second applicant’s subclass 461 visa application as a matter of priority, unless it is the view of the Court that it should refrain from doing so at this time, noting that the outcome in the present matter may have an effect on whether the second applicant has a separate application.

   The decision of SZRMC v MIAC and the submissions of the first respondent

   16.The finding of Driver FM in SZRMC v MIAC [2012] FMCA 845 (“SZRMC”) was consistent with the position of the Department adopted in relation to reg. 2.08 (see [10]-[11] above). It also had implications for the jurisdiction of the Refugee Review Tribunal. The first respondent relies on the decision of SZRMC in relation to the present application but acknowledges the limited exposition in the decision of the reasoning on the question of the proper construction of reg. 2.08.

   17.The question was the subject of oral submissions and argument before the Federal Magistrates Court as set out in the transcript to the proceeding (annexed to these submissions) and at references T9 line 10 to T13 line 13.

   18.The Court was taken to reg. 4.31A of the Regulations and in particular, sub-regulation (b) which, it was submitted, seemed to indicate that where there is a combined application (due, for example, to the operation of reg. 2.08) that means there will likely be two decisions, one for each of the persons whose application is combined. Further, it is only in those circumstances where there is a decision in respect of two or more applicants that they are RRT-reviewable and may be combined for that purpose.

   19.Counsel for the first respondent also submitted that a further consequence of such a construction would be that the fact that applications are combined does not mean that the refusal of one is a refusal automatically of the other. Instead, there is still a valid application by the second applicant undetermined by the delegate, notwithstanding the delegate has made a decision in relation to the first applicant. The Court accepted these arguments as is reflected in paragraphs 29 to 31 of the decision in SZRMC.

   20.The first respondent submits that SZRMC was correctly decided on the question of the jurisdiction of the Tribunal and can be applied in connection with the present application to support a finding that the Tribunal did not err when it found it had no jurisdiction to conduct a review in relation to the second applicant as no reviewable decision on her application had been made.

2. I accept the first respondent’s submission that the Tribunal had no jurisdiction in relation to the second applicant because the delegate had not made a decision in relation to the second applicant. Section 338 of the Migration Act 1958 makes it clear that MRT-reviewable decisions are decisions, as opposed to failures to make a decision.  Although under the Administrative Decisions (Judicial Review) Act 1977 a decision includes a decision that is required to be made, that is not the case under the Migration Act 1958.  In the absence of a decision by the delegate, there was not an MRT-reviewable decision for the Tribunal to review.

3. The applicant is correct that the Tribunal on review may exercise all of the powers of the Minister.  However, those powers may only be exercised where the Tribunal has jurisdiction.

4. Nevertheless, the fact remains that the Minister was and is under a continuing obligation to determine the application that the second applicant was taken to have made at the time of her birth, on 4 June 2012.  Regulation 2.08 does not say that the second applicant is taken to have applied for a visa when her mother notified the Department of her birth.  Regulation 2.08 provides that the second applicant is taken to have applied for the relevant visa when she was born. 

5. It is unfathomable that in the almost two years since the date of the second applicant’s birth, the Minister has not made a decision on the application that the second applicant is taken to have made on 4 June 2012.  The Minister acknowledged before this court that he is under a continuing obligation to make a decision on that application, but he has still not done so.

6. I have considered whether it would be possible to remit the matter to the Tribunal with a direction for the Tribunal to remit the matter to the delegate for determination of the application that the second applicant is taken to have made on 4 June 2012.  However, I have been unable to ascertain any legal basis for doing so.

7. In all the circumstances, I can only conclude that the Tribunal correctly held that it has no jurisdiction in relation to the second applicant.  This ground is not made out.

Ground 6

1. The sixth ground of review in the application filed on 11 June 2013 is:

   The Tribunal has erred in its interpretation of para 461.213(b)(ii) of the Regulations.

2. In their written submissions filed on 4 March 2014, the applicants said:

   2.     The second jurisdictional error is found at paragraph 42 page 171 of the Court Book, Wherein the Tribunal has stated as follows, “ As clause 461 .213 (b) (ii) requires that each of the criteria 3002, 3003, 3004 & 3005 to be met (The tribunal emphasis) The failure of the applicant to satisfy criterion 3002 means, contrary to the submission of the applicant’s representative, it is unnecessary for the Tribunal to consider the remaining criteria 3003, 3004 & 3005, This is respectfully submitted that this constitutes jurisdictional error in that nether (sic) the Tribunal considered the other criteria 3003, 3004 & 3005 nor has it given any reasons for saying that it is unnecessary to do so.

3. Subclass 461.213 of Schedule 2 of the Regulations provided, at the relevant time, that:

   If the application is made in Australia, the applicant:

   (a)is the holder of a substantive temporary visa other
   than a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or

   (b)does not hold a substantive visa and:

   (i)immediately before ceasing to hold such a visa was the holder of a substantive temporary visa other than a Subclass 426 visa; and

   (ii)satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

4. Clause 3002 in Schedule 3 to the Regulations provides that:

   The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

5. Clause 3001 in Schedule 3 to the Regulations provides that:

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

   (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or

   (c)     if the applicant:

   (i)         ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)    entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)   the last day when the applicant held a substantive or criminal justice visa; or

   (iv)   the day when the applicant last entered Australia unlawfully; or

   (d)if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

   (i)         the day when that last substantive visa ceased to be in effect; and

   (ii)    the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

6. Relevantly, the first applicant ceased to hold a substantive visa after

   
   

   1 September 1994, so the relevant day is the last day on which she held a substantive visa: cl. 3001(2)(c)(i) and (iii).

7. In relation to this issue, the Tribunal said:

   39.The remaining issue is whether the applicant meets the requirements of cl.461.213(b)(ii) at the time of application. To meet cl.461.213(b)(ii), the applicant must satisfy all the Schedule 3 criteria listed, including criteria 3002. Criterion 3002 relevantly requires in this applicant’s circumstances that she have lodged her current visa application within 12 months after the day when her last substantive visa ceased to be in effect.

   40.The evidence establishes that the applicant’s last substantive visa, the subclass 676 Tourist visa, ceased to be in effect on 6 January 2010. The evidence also establishes that the current visa application was made on 26 April 2012.

   41.On the basis of the above, the Tribunal finds that the application was not made within 12 months after the last day the applicant held a substantive visa. Accordingly, the Tribunal finds the applicant does not meet Schedule 3 criteria 3002.

   42.As cl.461.213((b)(ii) requires each of the criteria 3002,3003,3004 and 3005 to be met, (Tribunal’s emphasis), the failure of the applicant to satisfy criterion 3002 means, contrary to the submissions of the applicant’s representative, it is unnecessary for the Tribunal to consider the remaining criteria 3003, 3004 and 3005.

   43.It follows that the Tribunal finds that the criteria in cl.461.213(b)(ii) is not met.

   44.As the Tribunal has found that she did not meet one of the requirements for the grant of the visa at the time of application, it must affirm the decision under review.

8. The Tribunal correctly dealt with this issue.  As cl.461.213(b)(ii) required all of the Schedule 3 criteria to be satisfied, it was not necessary to consider the criteria in cl.3003, 3004 or 3005 of Schedule 3 to the Regulations once it was apparent that the first applicant did not satisfy the criteria in cl.3002.  This ground is not made out.

Conclusion

1. As none of the applicants’ grounds has been made out, the application must be dismissed. 

2. The first respondent seeks costs.  In the normal course, costs would follow the event.  However, as a matter of discretion, it seems to me to be appropriate in the unusual circumstances of this case to reserve the costs until the Minister has complied with his continuing obligation to determine the application that the second applicant is taken to have made on 4 June 2012.  There will be orders accordingly.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  16 May 2014